Taking Control: understanding bailiff rights

Bailiffs and your rights, everything you need to know

I sometimes get asked about your rights where bailiffs are concerned. This is quite a specialist area and so I asked Alison Blackwood of StepChange to provide some guidance.

Stepchange and Bailiffs

Here at StepChange Debt Charity we are still hearing from our clients about problems with the behaviour of bailiffs and bailiff firms. In fact we were so concerned at instances of bailiff not seeming to follow regulations and standards, that we are working with eight other charities on a campaign “Taking Control” that is calling for further bailiff reform.

Bailiff reform

But, reform is a long-term aim. What happens if you are visited by a bailiff now? First of all, bailiffs are not the same as debt collectors: a debt collector doesn’t have any special legal powers to collect a debt, whereas a bailiff does. If you are certain you are being contacted by a bailiff, it’s good to know what powers they have, so you understand what they can and can’t do.
A door, control: understanding bailiff rights

Before you get a knock at the door from a baliff

Before any visit to your home takes place, bailiffs must send you a letter called a notice of enforcement. This will give you seven clear days’ warning before they visit. This means as long as the organisation you owe money to (the creditor) has your current address, you’ll get a warning before the first bailiff visit, and a chance to discuss repaying the amount owed.

If you are not the person named on the notice of enforcement, you should write to the creditor and the bailiff firm, stating that you are not the person named on the enforcement notice. The letters should be sent by recorded delivery and you should keep a copy, so you can prove you have done this if you receive further correspondence, or a visit, about the debt.

If the bailiff then still turns up and is shown your copy of letter and of recorded delivery, along with ID such as a rent bill, that should be sufficient to turn them away. Although we’ve had examples where this hasn’t worked and the case has had to be escalated through the bailiff complaints process – which is another maze-like range of options.

When and where a bailiff can visit you

A bailiff can only visit you at home between 6am and 9pm. There are some exceptions if they’re calling at a business which opens at night, or if a court has given special permission, but this is rare.

Bailiffs can visit any property in England or Wales where you live, or run a business. If you’re self-employed they can visit your business address. But if you work for someone else they shouldn’t call at your workplace. However, if visiting your workplace would let your employer or colleagues know of the debt that would be a “mustn’t” as it breaches the Data Protection Act They can visit someone else’s property if your goods are stored there, but they need to ask the court for permission first.

They can also take any goods you’ve left on a public road, including your car. They can check the DVLA records to find out if you’re the registered owner of a car.

Do you have to let bailiffs in?

In most cases a bailiff can only come into your house peacefully through a front or back door. They can’t break in without giving you a chance to let them in voluntarily. This means they must:

• Explain who they are
• Say why they’re calling
• Enter only with your permission
• Enter without using force

For most types of debt, when bailiffs first visit, they’re not allowed to:

• Climb through a window
• Break down doors or use a locksmith
• Push past you or put their foot in the door to stop you closing it
• Enter the property when there’s only a child under 16 at home
• Lie about who they are or why they’re calling

There are some cases when a bailiff is allowed to use force to enter your house if you refuse to let them in. For example, to collect an unpaid magistrates’ court fine; if you are self-employed, to enter your business to collect unpaid county court or high court judgements; or if the bailiff has been given a court order allowing them to use reasonable force to collect HMRC debts, like income tax. However, in most cases they have to ask permission from a judge before they’re allowed to use force, and evidence from the courts shows that this happens very rarely.

What will a bailiff do when they visit you?

If you’re not able to pay the debt straight away, a bailiff will look for items which could be taken away and sold. They will try to come into your home to do this, but remember in most cases they can’t force their way in if you refuse.

They’ll make a list of these goods. The goods are then under the bailiff’s ‘control’. It is illegal to sell or give away these controlled goods until you’ve paid off the debt in full.

Bailiffs can remove controlled goods straight away, but it’s much more common for them to leave the goods with you. They’ll draw up a payment arrangement with you called a controlled goods agreement – usually they’ll ask for a lump sum straight away and they may allow you to pay off the rest in instalments.

If you miss any payments under the controlled goods agreement, the bailiffs can come back and remove the controlled goods to sell them – they can use force, if necessary, to take your goods at this point.

What can bailiffs take into control?

A bailiff must leave you with essential goods, including:

• A cooker or microwave, a fridge and a washing machine
• A landline or mobile phone
• Beds and bedding
• A table and chairs
• Appliances to heat and light your house
• Medical or care equipment

Some goods are protected and can’t be taken by a bailiff, for example:

• Goods which are owned by someone else – but they can take goods which you own jointly with someone else
• Pets and assistance dogs
• Tools or other equipment that are essential for your job or study, up to a maximum total value of £1,350
• A vehicle used by a disabled person

The bailiff must discuss the needs of you and everyone else in your household, and reach agreement about which items should be classified as essential and which can’t be taken.

Find out more on bailiffs and your rights

The law on bailiffs is complicated. The StepChange and National Debtline websites give more information on how best to deal with bailiff action, depending upon the type of debt you have. You can also find a fact sheet on how to complain about a private bailiff which includes sample letters.

Remember, if you need help with debt or are worried about a bailiff visit, please seek free advice from an independent debt charity as soon as possible.

And, if you feel pressured by bailiffs, campaign for change

You can share your experience on the Taking Control website. All stories shared are anonymously and the only data stored is your parliamentary constituency, so we can more effectively lobby local MPs for reform.

About Alison Blackwood

Alison Blackwood has been the Senior Campaigns & Policy Advocate at StepChange Debt Charity since May 2016, and is responsible for the organisation’s campaigning and policy work on civil procedure and enforcement. Before that she worked as a Senior Campaigns Officer at Citizens Advice, Strategy & Improvement Manager at London Borough of Camden and Head of Policy & Knowledge at London Voluntary Service Council. Alison is an RSA Fellow and has been a trustee of various small London charities and Chair of a local community enterprise organisation, Communities in Focus.

Further help about bailiffs

How to stop a debt being sent to the bailiffs from DebtCamel

 

The Small Claims Court process made simple

legal actionWhat you need to know about using the Small Claims Court

 

What you can try before using the Small Claims Court

Have you considered using an alternative dispute resolution service before taking someone to the Small Claims Court? These ways may be quicker cheaper and more simple. But if you have followed all the Tips on how to complain, contacted the CEO of the company (addresses can be found at ceoemail.com) used the How To Complain: The ESSENTIAL Consumer Guide to Getting REFUNDS, Redress and RESULTS! and the ADR avenues are not open to you then when all else fails and you can’t get the money you are owed you may choose to go to the Small Claims Court. There isn’t actually a Small Claims Court. It is the County Court through which a simple shorter process is available. Usually hearings last less than a day.

There are different processes in Scotland (where you can claim for up to £3,000 or up to £5,000 depending on case) and Northern Ireland £3,000.

You must try and resolve the matter before applying to the court. The court will expect you to have done this and given the defendant warning about going to court if a satisfactory response is not received within a set time. This is called a “Letter before action” which needs to state the facts – that there is money owed, why it is owed and how much is owed. The demand, with a reasonable period (usually 14 days is sufficient for the debt to be repaid), needs to state that if acknowledgment or reply is not received within 14 days, then proceedings will be prepared and issued.

What to consider before using the small claims court

  • It takes ages. From start to court hearing is usually about 6 months. The process is relatively simple but not always completely clear, and changes, so don’t be caught out if you have been through the process before and read through all the information about all the stages and possible outcomes. It takes 6 months because there is time between all the stages of different paperwork.
  • If you are thinking of taking a large organisation like Tesco to court as I did, the chances of you being paid when you win are higher of course. I really wanted to not be paid in time so I could send the bailiffs in and actually I didn’t get paid but it was just the usual poor internal communication. But seriously, if you take a rip off builder to court for example, consider the chances of being paid, the potential further costs of enforcing the judgement, and the builder going bankrupt.
  • Whether you can take on further stress knowing that the whole process will take 6 months and a fair bit of your time putting evidence together and undertaking the court paperwork (I did not find the court paperwork cumbersome but putting evidence together can be).
  • The likelihood of winning.

Before you start the small claim process

The Pre-Action Conduct guide, published by the Department of Justice, explains the conduct and steps courts would normally expect parties to take before commencing proceedings for particular types of civil claims.

This conduct states that litigation should be a last resort. The defendant and complainant should consider whether negotiation or ADR might enable them to settle their dispute without commencing proceedings. They should consider the possibility of reaching a settlement at all times throughout the process.

The court may decide that one or more parties (claimant or defendant) has failed to comply if s/he has unreasonably refused to use a form of ADR, or failed to respond to an invitation to do so.

If there has been a non-compliance that is not materially important then there’s no need for the court to do anything. But if there has been a non-compliance the court could pause or stop the proceedings until the party fulfils its duty under the pre-action conduct/practice direction. It is possible that if a claimant hasn’t tried ADR, the court could stop the case proceeding any further until the parties have used an ADR provider. The court could also apply sanctions.

The sanctions that could be applied (for any non-compliance with the protocol) cover the financial implications. The party at fault for non-compliance may have to pay the cost of proceedings, or part of the cost to the other party. This could be on an indemnity basis (which means that it might not be proportionate). If the claimant has been awarded money s/he may be awarded less interest than otherwise may have been the case. (If the defendant is at fault, s/he may be awarded a higher rate.

Small claims court fees

You can go through the small claims track process for amounts up to £10,000. Over this the case can still go through the small claims process but if you as a claimant lose you may have to pay the defendant’s costs. Claims for personal injury must be under £1,000. It also needs to be less than £1,000 when a tenant is claiming against their landlord because they want repairs or other work undertaken on the property and those works are less than £1,000. In Scotland and Northern Ireland, the Small Claims Court cannot be used to claim personal injury compensation at all. If you’re filing a personal injury claim in Scotland or Northern Ireland, contact a solicitor for advice on how to begin proceedings.

You may be exempt from paying fees if you are on a low income but there is a long form to fill out to discover if you are eligible.

Using Money Claim Online (MCOL) is cheaper and I would recommend you use it. You can still ‘phone the court for advice (administrative) and when I have done so I have found them really helpful.

Fees can be found at  the Government website Make a court claim for money.

Small claims court process

When you apply online all the details you need are on the website, but these are the very basics. You fill out a form from your local court but ideally online. Here you fill out all the details of the claim and contact details. One you keep and one is sent to the defendant. If it is complicated seek legal advice (Citizens Advice is free). You can also claim interest at 8%. The court sends a copy to the defendant.

The defendant can accept the claim and pay you, or they can make an offer of how to pay. You can accept this offer and if the defendant doesn’t pay you can take further legal action to enforce payment. If you do not accept the offer you will need to give your reasons and a court official will decide what is reasonable and will send both of you an order for payment (‘judgment for claimant after determination’). If you are not happy with this decision you can write to the court giving your reasons.  A judge will make a final decision and if the defendant does not keep to this arrangement you can take enforcement action.

If the defendant chooses to defend the case, they must respond within 14 days. A questionnaire is then sent to both parties. The parties will at this stage indicate whether they wish to try small claims mediation. Once all Direction Questionnaires are received the file is then referred to the District Judge for allocation. If parties have indicated that they wish to try mediation the District Judge will list the case for hearing for a date in the future and refer to mediation. If mediation is successful then the hearing will be cancelled, if not then the Claimant would pay the hearing fee 14 days before the hearing and the hearing will take place.

If mediation is successful then the Claimant would not get the issue fee back as this is for the issue of the claim and allocation, The fees that have been paid by the Claimant should be taken into account when accepting a settlement sum from the   Defendant.

A date and time is set for the hearing. Evidence is exchanged between the parties at least 14 days before the court hearing date.

Sometimes the court will not set a final hearing date at the allocation stage (when both parties are sent questionnaires). It could instead propose that the claim is dealt with without a hearing. If agreed by both parties it could be decided on papers only. The judge could hold a preliminary hearing if the claim requires special directions or where the judge feels that one party has no real prospect of succeeding and wants to sort out the claim as soon as possible to save everyone time and expense – or if the papers do not show any reasonable grounds for bringing the claim. A preliminary hearing, therefore, could become a final hearing where the matter is decided.

If the defendant doesn’t respond within the 14 days the judge can decide the case.

If the judge finds in your favour the judge will provide reasons for the decision. You will win your court costs.

How to enforce a judgement

If the defendant does not pay you can enforce the judgement. You have four choices:

Bailiffs for which you will pay another fee that the defendant will have to repay and fill out a “Warrant of control form”. The bailiff will attend the defendant’s property within 7 days and see if there are goods that can be sold. The defendant can make an offer to pay in instalments which you can agree or reject. If you reject you will return to court for the judge to determine repayment. You can add further costs for attending this hearing from the defendant.

Get money deducted from wages for which you will need to fill out a form to request that the defendant’s employer takes money from their wages to pay the debt – an “Attachment of earnings order”.

Freeze assets or money in an account for which you will need to fill out a“Third party debt order” so that assets in the defendant’s bank or building society are frozen and the court will decide if the money can be used to pay the   debt.

Charge the person’s land or property. You can ask the court to charge the defendant’s or company’s land or property for which you will need to fill out a “Charging order”. If the land or property is sold, the defendant must pay this charge before they get their money.

At the court and on the Government website you will find all the necessary forms and details of the process and details of the various possible outcomes and charges for different enforcements.

Tips for preparing and being in, court

  • Sue the right person, check you have the registered not just the trading name for example
  • Read everything the court sends you carefully
  • When using appendices (I had numerous in the Tesco case) number them and refer to each piece by the number in the explanation in Make it easy for the judge.
  • Clearly demonstrate how the law has been broken g. “The photo of item in appendix x shows described fault.”
  • Use good English and get someone to check it if you are
  • Check deadlines for court
  • Check and double check your paperwork and, unless you are absolutely sure it makes perfect sense, get someone to to check through for you.
  • Be objective don’t use any emotive
  • Be polite and precise
  • When at court be respectful and allow for them running
  • Don’t forget to claim for court fees, any out of pocket expenses for going to court and to provide receipts for these.

I’ve been to court three times, one of them a builder took me! I won all 3 times, one of them being against Tesco. I have also helped other people through the process when we have not succeeded through other means! Fees at point of publishing this post are here.

Alternatives to the small claims court

See Alternative Dispute Resolution: What it all means for full details and links to some warnings about which companies to use.

A film for CAB on options open to you when you can’t get joy through customer services:

The Complaining Cow – when things go wrong